Our View: Still seeking a healthy balance on immigration in America

Thursday

Jun 28, 2012 at 12:01 AMJun 28, 2012 at 9:59 PM

It was a law that did not quite feel right from the get-go, Arizona's 2010 stab at stemming illegal immigration. Earlier this week five members of the U.S. Supreme Court agreed, for the most part, among them Chief Justice John Roberts, who is nobody's liberal.

It was a law that did not quite feel right from the get-go, Arizona's 2010 stab at stemming illegal immigration. Earlier this week five members of the U.S. Supreme Court agreed, for the most part, among them Chief Justice John Roberts, who is nobody's liberal.

To be sure, it was a mixed decision, with the high court upholding the centerpiece of the law, the so-called "show me your papers" provision that has those "police state" overtones that critics have been so fond of referencing. Though unanimous on that score - it is clearly federal law, after all, and has been since 1952 - the justices did indicate that they intend to give Arizona a mighty short rope, and could take a second look if there are abuses along the lines of "unnecessary harassment of some aliens."

The justices did toss three other elements of Arizona's Senate Bill 1070, perhaps the most egregious of which permitted police to arrest without warrant those they merely deemed suspicious of not being here on the up and up, which effectively would have allowed law enforcement to detain someone on appearance alone - ie., looking Hispanic. As Justice Anthony Kennedy, writing for the majority, indicated, "If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent." Beyond that a majority of justices indicated it was a constitutional no-no to force immigrants to register with the state and to make it a crime for the undocumented to work or to seek a job.

Kennedy acknowledged Arizona's "understandable frustrations" but said that fundamentally, "the state may not pursue policies that undermine federal law," with Uncle Sam having "broad, undoubted power over the subject of immigration and the status of aliens." This from someone who pretty much has been a states' rights guy, though perhaps not as much as Justice Antonin Scalia, who issued a blistering dissent in which he admonished the majority for glossing over the state sovereignty issue in an Arizona that "bears the brunt of the country's illegal immigration problem" and whose citizens feel "under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy," largely because of the federal government's failure to enforce its own immigration laws.

"We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants," Scalia wrote. "We are talking about a federal law going to the core of state sovereignty: the power to exclude ... What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law - whether it excludes those whom federal law would admit, or admits those whom federal law would exclude ... Arizona has moved to protect its sovereignty - not in contradiction of federal law, but in complete compliance with it."

Scalia also took some potshots at President Obama - specifically the administration's recent decision not to deport illegals whose parents brought them here as children and who are furthering their education or serving in the U.S. military - which did nothing to dispel and much to reinforce widespread perceptions that he specifically and the court generally have become partisan as opposed to dispassionate, impartial interpreters of the Constitution and the intent of the Founders. Drop the politics and Scalia's arguments may have had more integrity.

Ultimately, Kennedy noted that "immigration policy shapes the destiny of the Nation ... The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here." Indeed, about 30 percent of Arizona's Hispanic population is in this country legally (compared to the estimated 7 percent that is not). They came here not just for economic opportunity but for the rule of law, which promises that all might get a fair shake if they play by the rules. It's clear that where immigration is concerned, the nation has yet to find a healthy balance between the progressive and the punitive.

All in all, this Supreme Court decision is a step, if a small one, in that direction (with a temporary guest worker program and a more reasonable path to citizenship necessary to make a real difference, courtesy of a more compromising, more pragmatic Congress, which does not describe the current one).

In any case, immigration has suddenly become a factor in this national election, with a very busy Supreme Court becoming something of an issue itself. Next up, the mother of decisions from this Supreme Court: the fate of ObamaCare.

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